Cross-Examination Tips for Computer Forensic Examiners

What sets a forensic examination apart from any other exploration and reporting of the contents of a computer system is the prospect of presenting those findings in court under oath. Every step we take as forensic examiners, from acquisition to disposition, may someday need to be explained on direct examination and defended on cross-examination. Cross-examination…the part of the trial where the other side’s lawyer publicly attacks you, challenges your integrity and pounces on your every innocent slip of the tongue. In the movies and on television, just a few salvos of cross-examination invariably reveal the witness as a liar or a buffoon. No wonder cross-examination is the part of the trial that makes so many expert witnesses sweat!

But not all expert witnesses flinch at the thought of cross-examination. For some, it’s the best part of the job--the ultimate thrill ride that tests their skills and affords them the opportunity to shine. They understand that the jury reserves its closest attention for the cross-examination and that points made under fire leave the strongest impression.

Jury persuasion can be based on trust, education or a mix of the two. If a juror comes to believe that an expert witness is trustworthy, i.e., skilled and credible, that juror is inclined to accept the witness’ opinions as fact on the strength of that trust. Alternatively, teach the jury the salient facts—instill knowledge in them--and the jurors will persuade themselves by the application of that knowledge. Most often, effective expert witness persuasion entails a measure of both. As both trial lawyer and testifying computer forensic examiner, I’ve cross-examined veteran witnesses and been cross-examined by skilled attorneys. From that unique perspective, I can attest that the qualities of an effective expert witness are preparation, knowledge, experience, effective communication, integrity and demeanor. You can be a more effective witness and manage your anxiety about cross-examination if you understand the lawyer’s agenda and prepare to meet the customary challenges. This paper explores those goals, describes common examination techniques and suggests strategies to come out on top.

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